Учебный год 22-23 / Watson - The Evolution of Western Private Law

ior, that makes the behavior normative? The main problem for any theory or understanding of customary law seems to be the determination of this additional factor. The Roman sources clearly imply that some additional factor is needed, even if the nature of this factor is not apparent. Thus, Epitome Ulpiani, : “Custom is the tacit consent of the people, deeply rooted through long usage.” Here the additional factor is expressed by the otherwise tautological “tacit consent” or “tacit agreement” (tacitus consensus). But to what has tacit consent been given? Certainly it is not to the long usage itself: the tacit consent is rooted in the long usage. And J. . . : “Unwritten law is that which usage has approved. For long-practiced customs, endorsed by the consent of the users, take on the appearance of statute.” This time the additional factor is expressed by “endorsed by the consent of the users” (consensu utentium comprobati). The vagueness of Ulpian has not been dissipated.

D. . . . ( Julian Digest ). Deeply rooted custom is observed as a statute, not undeservedly; and this is what is called law established by usage. For because statutes themselves bind us for no other reason than because they have been accepted by the judgment of the people, then deservedly those things which the people have approved without writing will bind all. For what does it matter that the people declare its wish by vote or by positive acts and conduct? Therefore, it is very rightly accepted that laws are abrogated not only by the vote of him who purposes law, but also through desuetude, by the tacit consent of all.

We need not discuss here the accuracy of Julian’s account of the people’s role in statute making, or of custom bringing about the desuetude of statute. This time the nature of the additional factor seems to be clearer: for Julian it appears to be that the custom is law because the people accept it as law.2

For a long time after Justinian there seems to have been little advance in coming to grips with the issue,3 but the idea of opinio necessitatis, which may by implication have its roots in the text of Julian, did eventually appear4 and, despite some opposition, still appears to be dominant. The idea of opinio necessitatis is precisely that the persons involved purposely follow a certain rule because they believe that it is a rule of law. The idea has been explained by modern theorists like K. Larenz:

One can say the practice must be the expression of an “intention of legal validity” of the community or of a “general conviction of law,” provided only that one is clear that this “intention of legal validity” or the “general conviction of law” is not solely a “psychological fact,” but the “sense of ful-

filling a norm” (of a legally commanded behavior) developing or dwelling in the individual acts of conduct according to the judgment of those sharing the same law.5

On this view then, custom becomes law when it is known to be law, is accepted as law and practiced as law by the persons who share the same law. But suppose that, once the custom is known to be law and is accepted as law, the practice changes. Does the old law cease to be law, and the new practice come to be law? If this does happen, at what moment does it happen? And what is the machinery for change?

There are two different problem situations. First, the past custom is remembered. Second, the past custom is forgotten.

In the first situation, which is the one that is really important both in theory and in real life, it must be the case that the law cannot be changed by a contrary practice. So long as the past custom is remembered as being law, there can be no point on the continuum at which the new practice is used in consciousness that it is law. The outmoded practice must cease to be law before a different law can begin to emerge from customary usage; and within the theory there is no mechanism for deleting law that no longer commands approval.

One might try to get around this difficulty by postulating a doctrine of desuetude inherent in customary law: when a practice that has become blessed as law ceases to be followed or to be regarded as law, then, it may be claimed, it ceases to be law. At that stage, but not before, the road becomes clear, it might be suggested, for the creation of new customary law. The performance of the new custom before the old customary legal rule became obsolete is a factor in making the old legal rule obsolete, but not (always following the doctrine of opinio necessitatis) in creating a new legal rule because the new practice was not followed in “the general conviction of law.” So at the moment of desuetude, there is no law on the point at all. But against this arises here in a particularly sharp form the objection raised by Friedrich von Savigny against opinio necessitatis within the framework usually attributed to custom.6 Custom should not rest on error, a point expressly made in the Roman sources.7 But then, he says, there is a contradiction without solution. For the rule of law should arise first through the custom, but at the time of the first behavior the law was, of course, not in existence. But the first relevant behavior should be accompanied by the opinio necessitatis. Consequently the first behavior rested on an error and should not be counted for the creation of the customary law. But this also applies to the second

act of behavior, which now becomes the first, and so on through all subsequent acts.

On this basis, under the received doctrine of opinio necessitatis and custom, it is logically impossible for customary behavior to create law. A fortiori, when the new customary behavior was being adopted when there already existed a different rule of customary law, any belief that the new behavior was to conform to law was clearly grounded on error. If custom cannot create a legal rule, even less can it both create and substitute a new legal rule for an established rule that it abolishes.

In fact, if opinio necessitatis is at the root of customary law, it is very difficult to admit the possibility of desuetude of a customary legal rule, provided always that the legal rule is remembered. Customary law is, we are told, a “general conviction of law”; hence it corresponds to what people generally do, and they do it because it is the law. To act contrary to this would be a deviant act, unacceptable and contrary to law.8 The point, it should be remembered, is not that customary behavior does not change but that, under the doctrine of opinio necessitatis, where a rule of customary law exists and is remembered, it cannot become obsolete by desuetude: contrary acting that is known to be contrary to the rule cannot affect it.

There is a further and more important logical difficulty in admitting the possibility of desuetude of customary law under a theory of opinio necessitatis. A legal rule can fall into desuetude only if it has been replaced by another legal rule, even if this later rule is only to the effect that the first rule no longer applies. But by the theory of opinio necessitatis, the new rule can come into existence only after it is established that the old known rule is extinct, since otherwise there could be no general conviction that the new behavior corresponds to the law. There is thus no scope for desuetude.

In the second situation also, where the past custom is forgotten, the law is not being changed by a contrary practice. If customary law is completely forgotten, then for all intents and purposes it does not exist and has not existed. There is not even any need to bring in here a theory of obsolescence. What would be involved is the creation of law where none existed before. Also the total forgetting of the customary law can happen only in particular circumstances.9 Either the past behavior occurred very seldom in practice, in which case one must doubt whether it had ever become law as a result of common consciousness that it was law. Or the people had in this regard adopted a very different life-style—per- haps as a result of migration—in which case it should be argued that the

new practice is law not because new law has replaced old law but because law has been created for circumstances where no law existed before. In any event, where a rule or supposed rule of customary law has been completely forgotten, one cannot admit that a subsequent contrary practice has, as law, replaced previously existing customary law.

Thus, the doctrine of opinio necessitatis excludes the possibility of changing customary law by subsequent practice, especially in the situation where the customary law is remembered. If one wishes to hold, as I believe theorists would wish to hold, that customary law should be in correspondence with what people do, then one would want any theory to countenance the possibility of changing the law by contrary practice. Opinio necessitatis must then on this basis be dismissed.

Savigny, despite his powerful argument against opinio necessitatis within the framework usually attributed to customary law, retains the notion. His solution rests on his general view of law as the “spirit of the people.” Law does not arise from individual acts of behavior but from common consciousness. Thus, individual acts of behavior are not the cause of creation of customary law, but are the appearances or indications of a preexisting common conviction of law.10 Hence, the opinio necessitatis exists before the first relevant act of behavior, which therefore does not rest on an error of law.11 Opinio necessitatis is thus saved but only for a very different doctrine of the nature of customary law. The validity of Savigny’s view of custom and opinio necessitatis depends on the plausibility of his general theory of law, which is today universally rejected, I think, by legal philosophers.12 Hence it will not be further discussed here.

Thus, if we wish to retain as an element in customary law the power to change when practices change—and even perhaps if we wish a power in customary behavior to create law—we must abandon opinio necessitatis. A further conclusive objection against the theory will emerge implicitly from the following pages, namely that opinio necessitatis just cannot explain what actually happens in practice. A different theory, which may prove to be more acceptable, is suggested to me by the work of John Austin. According to him, customary laws considered as rules of positive morality arise from the consent of the governed; but considered as moral rules turned into positive laws, customary laws are established by the state, either directly by statute, or circuitously when the customs are adopted by its tribunals.13 Thus, customary behavior does not make law; law is made by legislation or by judicial decision. Custom becomes law only when it is the subject of statute or judicial decision.

Before we consider the value of this, we should first recognize that the proposition is not necessarily or obviously correct except to someone who, like Austin, holds that law is the command of a sovereign. Statute is law even before it is enforced by a decision of a court.14 Hence, if other sources of law, such as custom, exist in possibility, then that law, too, may in possibility exist without benefit of a court decision. It may well be argued that “it is precisely the binding force of custom which challenges [Austin’s] initial assumption itself,” and that “he failed to explain satisfactorily why the body of rules which he classifies as ‘positive morality’ . . . lacked the true character of law.”15

A second point that may be made is that societies that do not regard judicial decisions, even a consistent line of them, as binding prece- dents—that is, as law—may nonetheless treat decisions establishing a custom as binding. On this basis one might claim that judicial precedent is not law; custom is law. When a court finds that a custom exists, the decision in itself is not binding, but the preexisting custom that already is law has as a matter of fact been established; hence the decision (which is not law) expressed the law.

These two points have, or may have, great weight against Austin, but there are other factors that seem to lend support to his position.

In the first place, customary law very often does not grow from a “general conviction of law.” In this case, legal decisions play a fundamental role in determining what is the rule of customary law. Thus, it is a standard complaint of those living under customary law who wish to reduce it to writing that the law is difficult to find, or know, or remember. Thus, to give a few examples, the famous Philippe de Beaumanois (d. ) gives among the reasons for his Coutumes de Beauvaisis: “It is my opinion and of others also that all customs that are now used be written down and recorded so that they be maintained without change from now on, because through memories that are liable to fade and human life that is short what is not written is soon forgotten” (Prologue, sec. ). In his Conseil (c. ), which concerns the customs of Vermondais, Pierre de Fontaines claims that the old customs are much destroyed and almost all are defective, partly because of judges who prefer their own wishes to using the customs, partly because of those who are more attached to their own opinions than to the acts of earlier generations, and almost entirely because the rich despoiled the poor and now the poor despoil the rich. The country, he says, is almost without custom (chap. , sec. ).

At the beginning of this century J. A. Brutails, in his celebrated work

on the custom of Andorra, also brought out the difficulty of knowing customary law. He stresses that in a small place the number of lawsuits is limited, and in the absence of any methodical collection of decisions, the law in the cases fluctuates. He points out that even on contemporary and important matters there is at times a disconcerting incertitude. For instance, he asked prominent people, magistrates, former magistrates, and judges what were the rights of the widow over the property of her husband; and he received five different answers.16 Indeed, he claimed often to have heard that Andorra had no custom, but Andorra seemed to him no different from other customary systems. Despite the numerous and significant gaps in the law, it was not certain whether they were to be filled first by looking at Roman, canon, or Catalan law. The common view was the first, but he sought to demonstrate that in fact it was Catalan law that had usually prevailed.17 It seems to me that Andorran legal sentiment now favors Roman law, though in practice Catalan law may prevail.

King Charles VII of France’s Ordonnance de Montil-les-Tours, dated April , records that “it often happens that in one single region, the parties rely on contrary customs, and sometimes the customs are silent and vary at will, from which great hardships and loss affect our subjects” (art. ).

In such situations, in the absence of official redactions of the customs, which then hold sway as statute, court decisions embody the rules. As Philippe de Beaumanoir says for his unofficial redaction, “We intend to confirm a great part of this book by the judgments that have been made in our time in the said county of Clermont” (prologue, sec. ). Well worth quoting are the words of the Maître Echevin in the preface to the official redaction of the customs of Metz in , after the work had supposedly been under active preparation since :

At last, gentle people, here is the methodical disposition, so passionately wanted, so impatiently awaited, the hard-won redaction of the customs according to which our ancestors so happily administered public business. The customs here, of course, cost much time to lift from the dust; if so many thorns (that you know about) had not been met with, you would be right to be less pleased with your official, because, truth to tell, one is not at all indebted for what one has dragged out rather than received. But apart from the incredible work employed simply to set out various opinions so that they agree on the same matter, there was need of several Hercules to overcome the difficulties, common and frequent, as much in seeking out the articles in each chapter, as in verifying them. This was not done by giv-

ing way to the opinions of individuals, but by a precise and painful reading through of the judgments, memorials, and instructions which mossy antiquity left in the strongboxes of the town. Despite all this, the customs are dear to us for the utility the public will receive from them.

The Maître Echevin’s words make clear both the great difficulty of finding the customary law and the belief that it is embedded in judicial decisions. There is also the belief that customary law is useful.

Brutails claimed, and he has been followed by Ourliac, that the idea of legality is very obscure in Andorran brains.18 Now if this means, as I think it does, that these scholars believe that there is often great doubt in Andorra as to what legal rules are appropriate to a given situation, and that ascertaining the precise legal rule does not rank as a high priority in general Andorran thinking, then their position should be generalized. For obvious reasons, it is often the case in customary systems that the legal rules are uncertain and that this is not treated as a matter of great concern. Customary law most flourishes in small communities with a high degree of kinship, and the law is not an academic learned law. Hence, to begin with, there will be a relatively small number of disputes, and, in a customary system, disputes delimit the scope of legal rules. Again, in the necessary absence of a strong academic tradition, there will be a reluctance to generalize from the cases and extract principles that can be used in other, rather different, situations. Moreover, what few important decisions there are may not be adequately recorded or be easily accessible. To give one example from a living customary system: the first published Andorran decisions appeared in a journal, Revista juridica de Cataluña, only in ,19 and there are still only two collections in book form. That of Carles Obiols i Taberner covers the yearsto and contains only ninety-six appellate decisions.20 That of Ourliac, already mentioned, also contains his commentary and covers decisions on appeal to Perpignan for the years through . Significantly, both sets of reports occupy each only one fairly slim volume. Above all, there is relatively little demand for a precise knowledge of the legal rules in a customary system because so many disputes in the small community are among relatives, friends, or neighbors who have to live with one another afterward and who therefore often have recourse to a less formal means of dispute solving. Respected friends or relatives may be invited to adjudicate, or there may arise in a village a recognized approach to adjudication. In any case, those appointed to judge will often decide by their opinion of what is fair and reasonable rather than search

for a definite legal rule. Formal legal rules do not necessarily give the most accepted solution. But if a problem situation occurs often enough, and if the same solution is usually reached (which need not be the case), a custom may emerge.

In the second place, often the customary law does not come from what the people do but is borrowed from elsewhere. The standard practice, particularly common in medieval France, of one jurisdiction accepting the law of another system as its residual custom is striking testimony to this, whether the outside system is the Coutume de Paris or of a neighboring custom, as in the pays de droit coutumier, or of Roman law, as in the pays de droit écrit. This wholesale reception, though it is residual, is particularly revealing, both because it cuts down the discretionary choice in the individual situation and because the outside system may have originated for a very different society (in economic and political terms), such as ancient Rome, or for a much larger, more commercial, and more anonymous center, such as Paris. The same phenomenon occurs even when a local patriot prepares an unofficial collection of the customs. For instance, modern scholars agree that by far the greatest part of the Conseil of Pierre de Fontaines comes from Justinian’s Digest and Code,21 even though it was meant to be a practical work for training a friend’s son in the local customs (Conseil, chap. , par. ). The same can be said for the contemporary Livre de Jostice et de Plet, a product of the Orleans area, where the Roman and canon-law origins of the rules are hidden and ascribed falsely to French notables.22 Of course, when these works were unofficial they would not themselves create the customary law, but they could be, and were, frequently treated by the courts as evidence of the custom. Here, too, court decisions have particular relevance: by adopting the rules in the books, whatever the origin of those rules, they declare the rules as custom. Again, in perplexing cases the courts themselves frequently based their decision on customs from elsewhere. Thus, Philippe de Beaumanoir also wished to confirm part of his book “for doubtful cases in the said county, by judgments of neighboring lordship.” Here not only was a “foreign” source of law borrowed, to be treated as the custom of the borrower,23 but the borrowed foreign rule was actually that embedded in the foreign judgment. Again, the borrowed rule would have (at least in authority) the force of law only when it was incorporated in a judgment or judgments of the borrower.

Thus, it often happens that the acceptance of rules as local customary law comes from local judgments and not from preceding local be-

havior.24 When this happens, the basis of the law is treated as custom, not judicial precedent. What then is the role of judgments in creating customary law? The nature of the question becomes clear, and so perhaps does the answer, if we set out a series of propositions, beginning with those already established.

. To be law custom needs more than behavior.

. Opinio necessitatis fails to provide the extra factor.

. Court decisions declare customary law even when (a) custom is uncertain (and there is no opinio necessitatis) and even when

(b) there is no custom.

. Proposition is accurate even when (as in many systems) court decisions themselves do not make law; hence, we cannot simply say the court decision is the basis of customary law.

. Custom officially written down as law is law as statute, though that is not proof that the custom was not law before.

Propositions to have been established. Proposition is self-evident. But we can now go on:

. If court decisions are not law and therefore are not the basis of custom becoming law, but decisions declare custom as law even when there was no preceding practice (i.e., taking propositions and together), then it is the official declaration of a rule as customary law that makes it law (whether the behavior was customary or not).

Therefore, it is official recognition that particular normative behavior is customary that makes it law. But official recognition also entails official acceptance. Hence, the validity of this custom as law depends on its official recognition and acceptance. The custom was not law before.

The objection may be made that though official recognition makes law as custom what was not the practice before, nonetheless habitual normative behavior may be law as custom even before official recognition, especially if the practice is universally regarded as the custom. The objection, though prima facie plausible, is ultimately untenable. Suppose a case involving the practice comes before the court and the court rejects the behavior as incorporating customary law; then one must hold that the custom cannot be changing the law; hence, the normative behavior was not customary law before the decision. It still remains that it is the official recognition of normative behavior as customary law that makes it law.

. It follows that, in societies where customary behavior can be treated as law, there is an attribution to the people of the power to make law by their tacit behavior, but this law is created only when it is officially recognized or accepted.

. Just as the opinion of a sovereign is not law until it is institution- alized—as statute, for example—so behavior of the people is not law until it is institutionalized by being recognized and accepted by an official court decision.

“The will of the emperor has the force of statute” in Justinian’s Institutes. . means, as the text goes on to explain, that his will comes to have that effect when it is couched in the proper institutionalized form. “Deeply rooted custom is observed as a statute” (D. . . . ) similarly means, as we have seen, that custom comes to have that effect when it is expressed in the proper institutionalized form, namely in judicial decision.

If the will of the emperor is mistakenly set out in the statute, it is the meaning that is accepted as being in the statute that prevails; likewise, if there was no custom, it is the meaning that is accepted as being in the judicial decision that prevails.

On this understanding of the nature of customary law there is no difficulty either for its creation or alteration. Normative customary behavior becomes customary law when it is recognized by the courts as such. There is no need for a belief among the actors that they were already acting in accordance with an existing rule of law. So long as the courts treat the custom as law, it is the customary law, but should the courts hold that the custom has changed, then the new ruling becomes the customary law.

This leads on to the question—which, for our purposes, actually need not be asked—whether these findings might be used to support the theory of John Austin that law is the command of a sovereign that is backed by a sanction, when a sovereign is defined as someone whose commands are habitually obeyed and who is not in the habit of obedience to anyone else. At a first stage we should not be concerned with the validity of that theory as a whole, and we should for the sake of argument accept Austin’s proposition that when judges make a legal rule, that rule is established by the sovereign legislature.25 Our concern at this point is thus only with the question whether, if there can be no customary law without a court decision, that means that customary law is at least as much a command of the sovereign as binding precedent is.